PARTIES TO DISPUTE:

BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES




Brotherhood (GL-4978) that:





EMPLOYES STATEMENT OF FACTS: Claimant Bizzarri, on account of force reduction, was being displaced by a senior employe and requested on January 22, 1960 to displace the incumbent on position No. 1, Grain Door Foreman, Omaha, Nebraska, effective January 25, 1960, as shown by Employes' Exhibit No. 1.


The General Chairman's letter of January 26, 1960 to the claimant outlines the opinion of the General Chairman as to the application of Rules 3, 6 and 9. However, it will be noted District Manager Schumacher, by phone conversation with the General Chairman did not agree that Rule 9 applied when an employe was exercising displacement rights. Stating it another way, District Manager Schumacher was of the opinion for an employe to exercise displace-

Bizzarri's letter of February 26, 1960, was not received in District Manager Schumacher's office until Monday morning, February 29, 1960 (See Bureau's Exhibit 9).

On December 20 and 21, 1960, this file was the subject of a conference held in the Bureau's office at Chicago, Illinois, at which time Vice Grand President G. B. Goble as well as the General Chairman L. C. Bell, representing the Brotherhood of Railway Clerks, attended, and following this conference the General Chairman was informed by our letter of December 23, 1960, as to the final decision reached by the Bureau (See Bureau's Exhibit 10).

Again, following receipt of a letter from the General Chairman, we made due reply to him under date of February 1, 1961 (See Bureau's Exhibit 11).




OPINION OF BOARD: Under date of January 22, 1960, Claimant wrote Carrier's District Manager:














14592 9


The claim was not disallowed within the time limitation prescribed in Section 1 (a) of Article V of the August 21, 1954 Agreement. Carrier's nonfeasance violated said Agreement.


Clerks aver that the claim was never disallowed by Carrier; but, the record shows that it was disallowed in a letter from the Assistant Manager to Clerks' General Chairman dated June 10, 1960; and, on appeal the Manager affirmed the denial on August 5, 1960.


NDC Decision 16 holds that where a continuing violation is involved: (1) a violation of Section 1, Article V of the August 21, 1954, Agreement terminates upon Carrier giving a belated notice of disallowance; (2) the claim for compensation must be allowed as presented for the period from the date of filing of the claim to the receipt of the belated disallowance; and (3) if the claim is before us on the merits we must adjudicate it and award such other and further relief, if any, as our interpretation of the agreement finds applicable.


As to the procedural time limitation violation we bold and will award, pursuant to NDC Decision 16, that Claimant be compensated as prayed for in the claim; but, only for the limited period from January 27, 1960 to June 10, 1960.


The issue on the merits is whether the basic agreement provides that in the exercise of displacement rights, in a reduction of force situation, an employe is entitled to thirty working days in which to demonstrate qualifications for the position on which he seeks to displace. For the affirmative, Clerks cite in support Rule 3 (f)-Seniority Datum; Rule 6-Promotions, Assignments and Displacements; Rule 9-Time In Which To Qualify. For the negative Carrier says: (1) Rule 9 is inapplicable in that it only applies to bulletined positions; (2) Rule 6 and Rule 12-Reducing Forces, are applicable; and (3) under Rules 6 and 12 the Carrier is the sole judge of fitness and ability absent arbitrary conclusion or other action designed to circumvent the agreement.


Carrier has cited numerous denial Awards involving a similar issue and rules. In those cases there was no evidence of the parties intent other than the wording of the agreement. This case differs in that the record contains evidence of the parties intent as to the applicability of Rules 3 (f), 6 and 9. The expressed intent of the parties must be honored.


Manager O'Connell and the General Chairman participated in lengthy negotiations which led to the execution of the Agreement. They, therefore, are qualified to testify concerning the meeting of the minds.


Under date of April 20, 1960, Manager O'Connell addressed the following memorandum, which is self-explanatory, to the District Manager with a blind copy to the General Chairman.


14592 10













FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:



That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

14592 11


That Carrier violated Rules 3, 6 and 9 of the basic Agreement.



Claim sustained except for paragraph (b) thereof for reasons set forth in Opinion.






Dated at Chicago, Illinois, this 24th day of June 1966.

Keenan Printing Co., Chicago, 111. Printed in U.S.A.
14592 12